[2023] KEHC 27012 (KLR)

Republic v Meli (Criminal Case 32 of 2018) [2023] KEHC 27012 (KLR) (13 December 2023) (Sentence)

Neutral citation: [2023] KEHC 27012 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 32 of 2018

JK Sergon, J

December 13, 2023

Between

Republic

Prosecutor

and

Musa Kipngetich Meli

Accused

Sentence

1. Musa Kipngetich Meli the Accused herein, was charged and convicted with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that on 5th day of November, 2018 at Nyalilbuch Village in Simbi Sub-Location, Soin Location within Kericho County, the Accused murdered Festus Kiprono.

2. Upon convicting the accused for the aforesaid offence, this Court directed the county probation officer to file a pre-sentence report and also invited the accused to make submissions in mitigation to guide the court in determining the appropriate sentence to be meted out.

3. Mr. Ng'eno Learned Counsel for the Accused, informed this court that the accused is an elderly man aged sixty (60), he is remorseful for the offence, he therefore urged this court to exercise leniency and consider a non-custodial sentence.

4. Mr. Musyoki Learned Assistant Director of Public Prosecutions submitted that the accused ought to be treated as first offender as he has no prior records. He further submitted that the accused did not express any remorse during trial, he killed a young boy aged ten (10) years. He assaulted the young boy, left him writhing in pain and therefore he was undeserving of the court's leniency.

5. This court also called for a pre-sentence report. I have considered the pre-sentencing report prepared and filed by the Kericho County – Probation Officer. In the aforesaid report it is noted that the offender never pursued education beyond elementary level because he lost interest in education, after school, he started doing casual work and small scale farming. He invested in a sugarcane planting business in the community that earned him money to invest on land and expand his sugarcane farming business. The offender was a village elder with no history of criminality and is well known in the community because of his generosity and his industrious nature. The offender is a family man, he is married to one Grace Meli and together they have nine children, five of his children are in school and fully depend on him for school fees support and the other four rely on casual work to fend for themselves. He is the primary breadwinner in his family. He enjoys quality relationships with his family and the community. He does not use alcohol or abuse any illegal substance. The offender suffers from high blood pressure and other health conditions that require regular monitoring and medication.

6. The offender vehemently denies committing the offence, he maintained that on the material day he found the deceased leaving his sugarcane farm whilst carrying sugarcane stalks, he shouted a warning to the deceased asking him to refrain from destroying mature sugarcane stalks, when the deceased took off to another direction evading the offender. The offender surveyed his sugarcane farm and left for home. He made a phone call to the deceased's father instructing him to warn his son not to destroy sugarcane stalks. The accused suggested that the deceased may have stumbled upon a tree stump occasioning him severe injuries as he was fleeing.

7. He vehemently denies assaulting the deceased and causing injuries which culminated in his death. He was sorry for the deceased who he maintains took off to the bush after he realized the offender's presence in the vicinity. He stated that he is a stepfather to the deceased and he had no grudge against him, however, he admitted to a longstanding dispute between him and the deceased's father. The offender initially tried to seek forgiveness from the deceased's parents but they were reluctant and wanted him to be sentenced to a long custodial sentence. However, recently upon conviction, the deceased's parents have relented and have expressed interest in taking part in the clan reconciliation rites.

8. The family of the offender regretted the circumstances under which the offender cut short the life of the deceased, they were willing and ready to participate in the reconciliation process in the interest of peace and coexistence among its members in the future. They therefore urged this court to place the offender on a non-custodial sentence to allow him to take part in reconciliation rites.

9. The family of the deceased was initially reluctant to listen to the offender's version of events culminating in the demise of the deceased on the material day, however, upon his conviction, they expressed interest to offer forgiveness which was sought by the offender and clan members. They also acknowledged prior to the fateful day the offender harbored no hatred towards the deceased.

10. The local administration were aware that the family had a tumultuous relationship which was never resolved amid their intervention. They expressed the need to have the family members bury the hatchet and embrace peace and coexistence for the interest of future family members. They stated that the offender has good community ties. The local administration and the community were not opposed to a non-custodial sentence.

11. Following the social inquiry and the assessment, the probation officer noting the offender willingness and readiness to abide with the requirements imposed for a non-custodial sentence and the fact that he had no history of criminality and had a low risk of re-offending found him suitable to be placed on probation order for a period of three (3) years under community correctional supervision through which he would be assisted to mend his strained relationship with family members and undergo counseling to assist in rehabilitation.

12. I have considered the fact that the accused was arrested and arraigned in court on 14th November, 2018 and had been in custody for a period of seven (7) months before being released on bond on 13th June, 2019.

13. Having considered the circumstances of the offence, submissions in mitigation and having further considered the contents of the pre-sentence report which is favorable, it is apparent that in the circumstances of this case that a non-custodial sentence is appropriate. I am therefore inclined to adopt the recommendation of the probation officer.

14. Consequently, I hereby sentence the Accused namely: Musa Kipngetich Meli to serve 3 years on Probation under the Supervision of the Kericho County Probation Officer.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. …………….J. K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – Mr. MusyokiW. K. Ngeno for the AccusedAccused – Present in Person